2106905 (Refugee)

[2021] AATA 3024

2106905 (Refugee) [2021] AATA 3024 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106905

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Mary Sheargold

DATE:29 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 29 June 2021 at 8:55am

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – application lodged out of time – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 21 April 2021 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 24 May 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 April 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 31 May 2021, the Tribunal wrote to the applicant inviting him to comment on the validity of his application for review.  Specifically, the letter noted that the application appeared to have been made out of time.  The letter noted that the applicant was taken to have been notified of the delegate’s decision on 21 April 2021, and that in accordance with DZAFH v Minister for Immigration [2017] FCCA 387, the last day for lodging an application for review was 18 May 2021, but that the application was not received until 24 May 2021. The applicant was invited to comment on the validity of his application by 14 June 2021.

5. On 2 June 2021, the applicant wrote to the Tribunal stating that due to his current job, he was unable to check his email frequently, and that by the time he checked his email, he noticed that he was overdue in his visa status.  He requested a chance to appeal his visa status.

6. The Tribunal has considered the applicant’s comments, but notes it has no discretion to accept this application out of time.  The Tribunal finds that the applicant is taken to have been notified of the decision on 21 April 2021: s.494C(5) of the Act.  Therefore, the prescribed period to apply for review ended on 18 May 2021.

7. As the application for review was not received by the Tribunal until 24 May 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

8. The Tribunal does not have jurisdiction in this matter.

   Mary Sheargold
   Member